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Interim order and interim constitution

By delving into politics, the Supreme Court verdict on the 16-point deal has once again blurred the separation of powers

The interim order issued by the single bench of the Supreme Court this week on the 16-point agreementbetween the four biggest political parties to ‘fast-track’ the constitution with a power-sharing compromise has become mired in controversy over the separation of powers.

This is not new, there was a similar debate with the installation of the election government headed by Chief Justice Khil Raj Regmi in 2013. The fact that those who approved of that decision are against it this time just shows how opportunistic politics can be.

The two page court decision clearly shows that the Judiciary has entered into the political realm even though it has mentioned that Article 1, 82 and 138 of Interim Constitution are challenged by the recent agreement between the parties.

The political leaders decided that the disputed issue of federalism would be settled by a two-thirds majority in Parliament based on the report of a Federal Commission to demarcate the borders of the provinces.

The Supreme Court, however, issued the interim order to not promulgate constitution without solving the issue of federalism first. But what the honourable justice seems to have forgotten is that this is precisely where everything has been stuck for the past seven years, and the 16-point agreement represents the first hope in untangling the knot. The interim order doesn’t mean that the Constituent Assembly has to stop work on drafting the constitution, and it is clear that the judiciary is over-stepping its bounds by interfering in a sovereign elected assembly.

The major parties which signed the agreement held an emergency meeting on the same day that Supreme Court issued the interim order declaring that they will not stop work in drafting the constitution. Chairman of the CA Subhas Nembang has also been vocally critical of not just the court this week, but also the President Ram Baran Yadav for seeming to side with the court. Actually, the Supreme Court order only alerted CA that according to Article 138, the issue of federalism must be included in the new constitution prior to its dissolution.

The court maintained that according to the provision of Article 138 of Interim Constitution the Constituent Assembly should decide the borders, number, names, structures and headquarters as well as a detailed list of these provinces, their resources and the sharing of rights. Based on this the court said that federalism should be decided by the CA itself and not by a future commission.

It is not normal practice for the Supreme Court to entertain this kind of writ petition, and it was in fact rejected by the Supreme Court administration. This writ was filed by Vijay Kant Karna, former editor and ambassador to Denmark, and the hearing was conducted by Justice Girish Chandra Lal, who is retiring in the first week of January. The recent 16-point agreement had sprung hope among Nepalis that there was finally a breakthrough on the constitution so that the country could focus on post-quake reconstruction. But the court order has dampened those hopes somewhat.

The four parties are putting on a brave face, and have said nothing will stop their agreement from being implemented. Their resolve comes from the fact that the UML, CPN(M) and the MJF(L) will all get berths in a new national unity government after the constitution is written. They are all pinning their hopes that the division bench of the Supreme Court will overturn the single bench verdict on the petition.

Justice Girish Chandra Lal’s decision has also opened him up to allegations of a Madhesi tilt in a decision that favours disgruntled members of the opposition alliance which did not agree with the 16-point deal. Numerous op-eds in the Nepali media have remarked that it is not a coincidence that the writ petitioner, lawyers, and Justice all are Madhesis who have been against the constitution compromise.